Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts

In this Essay,
Professor Patrick Weil reexamines the constitutional function of the passport
in relation to American citizenship. The State Department recently developed a
policy of passport revocation whereby some Americans are transformed into de
facto stateless persons, like Edward Snowden, or are prohibited from living
abroad as citizens, like dozens of Yemeni Americans. In the Yemeni
Americans’ case, the State Department confuses the legality of passports
and naturalization. Revoking Snowden’s passport violates the right for a
citizen to possess a passport confirming his or her legal
identity—including citizenship—while abroad. This passport
function, recognized since 1835, is one of the privileges and immunities of
American citizens protected by the Fourteenth Amendment. The Supreme Court has
never authorized its suspension by the executive for national security reasons,
unlike the other function of a passport—the right to travel. New
technologies offer a way to distinguish between these two functions and to make
effective a constitutional right.

On June 22, 2013, Edward J. Snowden, a Hawaii-based computer
specialist and contractor for the National Security Agency (NSA), had his passport
revoked by the United States State Department.1 While working for the NSA, Snowden
had secretly downloaded classified documents detailing NSA surveillance
operations. By May 20, 2013, Snowden had left Hawaii for Hong Kong, where he
started releasing the top-secret material in his possession to the press.2

On June 14, the U.S. Justice Department filed criminal
charges against Snowden in federal district court.3 The following day, the Justice
Department formally requested that Hong Kong authorities issue a provisional
arrest warrant for Snowden.4
Eight days later, on the very morning—Hong Kong time—that his
passport was revoked, Mr. Snowden was able to board a flight to Moscow. He
remained in Moscow Sheremetyevo Airport’s transit zone until August 1,
2013, when Russian authorities granted him a one-year temporary asylum along
with an identity document.5

The State Department reaffirmed that Snowden remained an
American citizen. However, according to U.S. Attorney General Eric Holder,
Snowden only remained eligible for a “limited validity passport good for
direct return to the United States.”6
The State Department had thus effectively voided Snowden’s U.S. passport.
Only if and when he decides to return to the United States will the State
Department grant him an official document permitting his return to the U.S.; it
will not grant him a passport of the common kind, which allows a U.S. citizen
to remain abroad.7

Snowden’s is not the only passport of an American
citizen that the U.S. State Department has recently revoked. According to the Washington Post, the State Department
revoked the passports of a few dozen—if not a hundred—Yemeni Americans after
arguing that because these individuals were illegally naturalized, their
passports were also obtained illegally.8

From an analysis of historical and legal precedents, it seems
clear that the State Department has acted in violation of the Constitution in
each of these cases. The revocation of Snowden’s passport violates a
privilege and immunity of American citizenship, protected by the Privileges or Immunities
Clause of the Fourteenth Amendment—namely a U.S. citizen’s ability
to keep a passport while abroad as a document proving her legal identity and
citizenship. This is a function of the U.S. passport that the Supreme Court has
recognized since 1835.9 The revocation of the passports of
the Yemeni Americans is similarly suspect. If the U.S. State Department
contests the legality of their naturalization, their cases should be brought to
court on the claim that there is good cause to revoke their citizenship. The
cases do differ; Snowden’s citizenship is uncontested while the
citizenship of the Yemeni Americans in question seems contestable. But in both
instances, when prevented from directly revoking or attacking the citizenship
of American citizens—which is staunchly protected de jure by Supreme Court jurisprudence and relevant statutes—the
State Department has developed a strategy of attack whereby Americans are
transformed into de facto stateless persons (as in the case of Snowden) or
individuals who are no longer able to live abroad as U.S. citizens (like the
Yemeni Americans). It is time for the courts to intervene and set the rules by
clarifying the link between U.S. citizenship and a U.S. passport.

I. snowden’s passport

At first glance,
Supreme Court jurisprudence seems to offer support for the Obama
Administration’s position in Snowden’s situation. In a 1981 case, Haig
v. Agee, the Court upheld the revocation of ex-CIA agent Philip
Agee’s passport.10
Agee, who was living in West Germany at the time, had traveled extensively to
other countries in order to publicize the activities of undercover CIA agents,
triggering government action against him.11
The Court affirmed the authority of the
Secretary of State to revoke a passport when the holder's activities in foreign
countries were causing serious damage to national security.12

Agee attacked the Secretary’s action on statutory
grounds—Congress had never authorized the Secretary of State to revoke
passports, either by an express delegation or by “an administrative practice sufficiently substantial and consistent to
warrant the conclusion that Congress had implicitly approved it.”13 Agee prevailed in the district court and court of
appeals on the basis of that argument. He further claimed that his
passport should be returned on three constitutional grounds, described by the
Supreme Court as:

[F]irst, that the revocation of his passport
impermissibly burdens his freedom to travel; second, that the action was
intended to penalize his exercise of free speech and deter his criticism of
Government policies and practices; and third, that failure to accord him a
prerevocation hearing violated his Fifth Amendment right to procedural due
process.14

The Court backed the government’s right to revoke
Agee’s passport for national security reasons. Denying his constitutional
claims, it stated that the freedom to travel
abroad was subordinate to national security and foreign policy considerations.
It saw no foundation for his First Amendment claim and his request for a
prerevocation hearing.15

Yet, in so deciding, the Court dealt with only one dimension
of the American passport: the one that guarantees American citizens the freedom
to travel, i.e., to leave U.S. territory and to cross foreign borders and
territories.

The Court did not discuss a second dimension of the passport,
which was first clearly distinguished and recognized in an 1835 Supreme Court
decision, Urtetiqui v. D’Arcy.16
The Court in Urtetiqui stated:

[A passport] is a document, which, from its nature
and object, is addressed to foreign powers; purporting only to be a request,
that the bearer of it may pass safely and freely; and is to be considered
rather in the character of a political document, by which the bearer is
recognised, in foreign countries, as an American citizen; and which, by usage
and the law of nations, is received as evidence of the fact.17

In Agee, the
Supreme Court reaffirmed that distinction by quoting the entirety of this
paragraph.18 The
executive branch itself noted this dual function of a passport; responding to a
question raised by Justice Rehnquist during the oral argument, U.S. Solicitor
General Wade McCree asserted that a passport “serves two purposes. First,
the purpose of identifying the bearer as a citizen or a national of the issuing
nation; and second, to request free passage for him from a foreign nation as
well as the efforts of the foreign nation to facilitate his travel.”19

The 1981 Court did not deal with the second function of the
passport—namely, to be “recognised, in foreign countries, as
an American citizen” and to “identify[] the bearer as a citizen or
a national of the issuing nation.”20
Agee did not invoke it, and Chief Justice Burger—who only included
answers to Agee’s constitutional claims in the final stages of writing
the majority opinion21—did
not raise the issue sua sponte.22

The majority opinion in Agee
was hotly debated within the Court, provoking a strong dissent by Justice
Brennan. For him, the right to travel out of the
United States had been recognized as “an important personal right
included within the ‘liberty’ guaranteed by the Fifth
Amendment” which could only be curtailed by Congress in the exercise
of its lawmaking function.23
He feared that the Agee decision
“has handed over too much of that function to the Executive.”24Brennan’s criticism is not the
point of my argument; let us concede that the revocation of a passport is a
necessary executive power insofar as it provides a means to restrict freedom of
travel across borders for security reasons. It is not as convincing, however,
that, for security reasons, an American citizen should be deprived of her right
to a legal identity as an American citizen, the second function of a
passport.

While stating that
“there is only a constitutional ‘freedom’ to travel
internationally—a freedom that may be curtailed within the contours of
due process of law,”25
the Court also reaffirmed in Haig v. Agee
a constitutional “right” to interstate travel.26 For the Court this distinction was important: the
right to travel abroad was a freedom that could be subjected to due process or
legislative limitation. The right to travel within the United States was an
absolute right before which both the executive and the legislative powers had
to bow. I believe that if the Court had inquired further, it would have
also affirmed a constitutional right for an American travelling or residing
abroad—that of keeping his or her passport as a valid identity document.
If asked today by Edward Snowden, for example, the Court would have to confirm
that it is his absolute right not to be deprived of his legal identity as an
American citizen. This absolute right can first be deduced from the absolute
protection afforded to him by his status as a citizen.

This absolute protection was
affirmed by the Supreme Court in 1967 in Afroyim v. Rusk27 and has received additional confirmation in
subsequent cases.28 In the preceding decades, citizenship was
conditional: starting in 1906, naturalized citizens who would return to reside
in their country of origin would be denaturalized.29
Starting in 1907, American women marrying foreigners would lose their citizenship.30
Later, under the 1940 Nationality Act, Americans could and did lose
their citizenship if they voted in foreign elections, escaped the draft, or
remained six months or longer within any foreign state of which he or either of
his parents was ever a national31—adding to a list which already
included denationalization for Americans who became citizens of a foreign
state.32
Between 1945 and 1967, more than 100,000 Americans, mostly native-born, were
denationalized.33Citizenship
was less protected than liberty, life, or property, for denationalization was
legally possible without due process.

In 1967, in Afroyim, the Supreme Court secured American citizens against
deprivation of their citizenship, on the basis of a literal reading of the
Fourteenth Amendment.34Justice Black concluded the majority opinion
by affirming:

We hold that the Fourteenth
Amendment was designed to, and does, protect every citizen of this Nation
against a congressional forcible destruction of his citizenship, whatever his
creed, color, or race. Our holding does no more than to give to this
citizen that which is his own, a constitutional right to remain a citizen in a
free country unless he voluntarily relinquishes that citizenship.35

Since then, the Citizenship Clause of the Fourteenth
Amendment has been interpreted as a right that is granted absolute protection.
Adopted in 1868, the Fourteenth Amendment states
first that all persons born or naturalized in the United States are citizens of
the United States. Then it continues with the following sentence: “No
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”36
These privileges and immunities were narrowly defined in the 1873 Slaughter-HouseCases,37 a decision that provoked and continues to provoke
great controversy. Many scholars have claimed that the Court did not
fulfill the original purpose of the Fourteenth Amendment.38
Nevertheless, the Constitution affirms some privileges and immunities of
American citizens and—however narrowly defined by the Court in the Slaughter-HouseCases—even this minimalist
conception turns out to be consequential.

The privileges and immunities of citizens of the United
States, Justice Miller wrote for the majority,
are those which “ow[e] their existence to the Federal government, its
National character, its Constitution, or its laws.”39
Miller then enumerated these privileges and
immunities, and it is possible to distinguish the ones he defines as owed to
the Constitution—namely, the rights guaranteed by the Thirteenth,
Fourteenth, and Fifteenth Amendments, as well as rights to peaceably assemble,
petition for redress of grievances, and claim the privilege of the writ of
habeas corpus—from those owed to the federal government and to its
national character—for example, the right to freely access the
nation’s seaports and to use the navigable waters of the United States.40 All these privileges and immunities are said to
protect American citizenship from any abridgment by the states.

Yet, in his majority opinion,
Justice Miller also deals with the privileges and immunities of the American
citizen abroad, in a foreign land, which arise not in relation to his or her
state, but rather to the federal government of the United States:

Another privilege of a citizen of the United States
is to demand the care and protection of the Federal government over his life,
liberty, and property when on the high seas or within the jurisdiction of a
foreign government. Of this there can be no doubt, nor that the right depends
upon his character as a citizen of the United States.41

One century later, in Afroyim,
Justice Black agreed that the main consequence of the denationalization of a
citizen is to “take from him the privileges of a citizen.”42
This tied privileges and immunities to the status of being a citizen of the
United States, now protected absolutely and independently of any crime or
illegal act committed by the citizen. The privileges of American citizens
abroad—like the privileges of an American citizen within the United States—seem
to have different sources. When the Court mentions the right of a citizen “to
demand the care and protection of the Federal government over his life,
liberty, and property,” it is as much a reference to the U.S.
Constitution as a reference to the national character of the United States,
given that the basic protection of one’s government belongs “to
those privileges and immunities which were, in their nature, fundamental; which
belong of right to citizens of all free governments.”43

The protection by the federal government of life, liberty,
and property is a constitutional right subject to due process. The rights of
protection and care while abroad, part of the privileges and immunities of
citizens of all free governments, have evolved over time. I believe that the
right to possess basic identity documents detailing one’s date and place
of birth, along with names and surnames, has become an absolute right, as much
a fundamental human right developed throughout
the twentieth century as a constitutional one stemming from Afroyim.

II. developments in
international human rights support the protection of the legal identity of americans

Among the numerous rights proclaimed by the Universal
Declaration of Human Rights, adopted by the United Nations General Assembly on
December 10, 1948, the “right to a nationality” guaranteed in
Article 15 has become one of the most respected and protected.

When a person lacks citizenship, the international community
provides a proxy: protection of the United
Nations High Commissioner for Refugees (UNHCR) and rights in the country
of residence44 fulfill the functions nationality
plays in linking an individual with a nation-state.The
international community does not provide an analogous proxy in situations where
other rights are denied, for example, when due process is lacking or gender
discrimination is obvious.

Beginning in 1922, some international agreements provided
refugees with a certificate that served as both a travel and identity
document—like a passport. Under Article 28 of the 1951 UNHCR Convention Relating
to the Status of Refugees, contracting states are required to issue travel
documents to refugees, “unless compelling reasons of national security or
public order otherwise require.”45

But the 1951 convention provides in Article 27 that
“[t]he Contracting States shall issue identity papers to any refugee in
their territory who does not possess a valid travel document.”46
This is an absolute obligation.47
There is an exception to the required provision of travel documents: security
reasons. There is no exception to the obligation to provide identity documents:
all contracting states must issue identity papers to any refugee in their
territory who does not possess a valid travel document. This means that the
United States is obliged to deliver identity documents to foreign refugees who
are in its jurisdiction and lack them.48

The right to be provided identity papers when abroad is
expressed by the fact that when a human being does not possess a nationality or
the protection of a state that can provide identity papers, the international
community has agreed to enter into an absolute obligation to provide them.
Should not this obligation, traditionally fulfilled by nation-states
voluntarily for all their citizens who happen to have lost their passport while
abroad, be considered a fortiori
imposed on the signatory states—including the United States—for their
own citizens?49

When the United States
canceled the validity of Snowden’s American passport, thereby stripping
him of an identity document, it set the stage for a humiliating paradox: an
identity documentaffirming and
certifying his American citizenship (by listing his place of birth and
citizenship) has been delivered to Snowden by the Russian authorities.50

The individual right to be recognized before the law found in
Article 6 of the Universal Declaration of Human Rights, as well as a
child’s right to be registered with a name and a nationality at birth
found in Article 7 of the Convention of the Rights of the Child, offer further
foundations for the duty to issue identity documents in international law.51
By doing so, the United States would fulfill the normal obligation of all
states toward their own citizens, especially those states that are democracies.
The ability of an American citizen to keep a legal identity has become one of
the privileges and immunities of American citizens as defined in the Slaughter-House Cases because it now constitutes
a “right of citizens of all free countries.”

This principle can also be deduced from Afroyim. In the early twentieth century, Edwin
Borchard—drawing on eighteenth-century legal thinker Emerich de
Vattel’s The Law of Nations—addressed
the question of the protection of the citizen living abroad. He believed that,
at least in his pre-World-War-II era, states had the right, but not the
obligation, to protect the interests of their citizens while abroad. This right
seemed to be derived from the nature of national sovereignty: because the
interests of a citizen were also the interests of the state, the state had the
right to vindicate those interests abroad whenever it thought doing so was
necessary.52

Yet Afroyim has
reversed this classical conception of sovereignty. In his majority opinion,
Justice Black—after having conceded that all nations possess an implied
attribute of sovereignty—stated that “[o]ther nations are governed
by their own constitutions, if any, and we can draw no support from theirs. In
our country the people are sovereign and the Government cannot sever its
relationship to the people by taking away their citizenship.”53
It is on the basis of the sovereignty of the citizen—a sovereignty
limited to the status of citizenship itself and to certain privileges and
immunities stemming from it—that American citizenship has become
absolutely secured.54
However, since Afroyim, the Supreme
Court has not ruled on a case that would allow
the Justices to bring the privileges and immunities of the U.S. citizen
up to date with this new understanding of citizenship. Is it not time for the
Courtto read the Privileges or Immunities
Clause and the Slaughter-House
jurisprudence in the spirit of Afroyim—i.e.,
to declare as an absolute right the possession by all Americans abroad of a
document attesting to their legal identity, a right to which the executive and
legislative powers must defer?55

Being identified as an American citizen abroad is a function
of the U.S. passport, recognized as such by the Supreme Court since 1835.56
This function is especially important when, once a passport has been issued
permitting an American citizen to travel abroad, its full revocation would lead
to a situation wherein its previous bearer could not be recognized as an
American citizen in foreign countries. A valid passport is the only identity
document requested from any citizen of the United States leaving North America,
and has been since 1978.57
It is the ultimate and definitive proof of citizenship and identity under
international law; other identity documents such as driver’s licenses and
birth certificates are not necessarily available or recognized abroad.58

At the time of the Urtetiqui
decision in 1835, the State Department could claim that it was difficult to
distinguish within a handwritten passport between the freedom to travel and the
right to an identity document. In 1981, at the time of Haig v. Agee, it was also difficult to revoke the freedom to travel
without seizing the passport. This is no longer the case. The technology of the
passport has been significantly transformed and now permits one to distinguish
quite easily within the passport between the freedom to travel and the right to
bear a legal identity. The biometric passport emerged as a global standard
following the implementation of stricter border security measures after the
September 11 attacks.59
More and more states have developed versions of this technology. It is equipped
with a Radio Frequency Identification (RFID) chip that contains the biometric
information of the passport holder. Biometric data are physiological and
behavioral characteristics of the individual, including fingerprints, voice,
and typing patterns, that serve to identify her within a certain population.60

Even when not
issuing biometric passports, all member states of the International Civil
Aviation Organization, a United Nations specialized agency, have achieved their
goal of “global interoperability,” understood as the capability of inspection
systems (whether manual or automated) in different states throughout the world
to exchange data, to process data received from systems in other states, and to
utilize that data in inspection operations in their respective states on
Machine Readable Travel Documents (MRTDs).61It is therefore easy for the
executive to suspend the first function of a passport—the right to travel—and
to make this information available throughout the world without revoking the
passport as a document that permits its bearer to prove her identity and to be
recognized as an American citizen. If a fundamental right of any American
citizen is at stake in the distinction of the different functions of a
passport, and if no technical issue can be raised as an obstacle for the fulfillment
of this right, the time has come for the courts to consider the issue.

When Chief Justice Burger wrote the majority opinion in Haig v. Agee, he at first did not deal
with the constitutional issues raised in the case; he did so later, reluctantly,
and in the opinion of Justice Powell, with a “summary” treatment.62 The
revocation of Snowden’s passport could offer the Court an opportunity to
finally examine the different dimensions of a passport in a new constitutional
and technological context. This is especially true given that Snowden’s
case is one among an increasing number of cases where the State Department
seems to have confused a passport policy with citizenship itself.

III. the yemeni americans in yemen

In recent months, a
significant number of U.S. citizens residing in Yemen have been summoned to the
U.S. embassy in Sana’a.63 When
they leave, it is without their passport—which has been confiscated and
revoked. The ACLU and other civil rights organizations have recently warned
that the U.S. embassy in Yemen has pressured American citizens to surrender
their passports and sign confessions without the advice of an attorney.64

The reproach directed at
Yemeni Americans by consular officers is that they—or their parents,
years earlier65—misinformed U.S. authorities
about some factual elements regarding their identities, dates of birth, last or
first names, and so forth. It seems that “[m]any Yemenis have a
patronymic, tribal or geographic name that identifies their origin, which is
often shortened for convenience when they immigrate to the U.S. and when they
fill their application for naturalization. That’s what
embassy officials used to claim fraud was committed.”66

Asked about this situation, a
State Department official stated that they “provide fair process to every
individual that enters U.S. Embassy Sana’a, while upholding [their]
obligations under the law,” adding that “[t]he Department has
authority to deny and revoke a U.S. passport under certain conditions,
including those involving false identity.”67

If reports from the Washington Post, Al Jazeera, and the ACLU are accurate,68
it seems that the State Department is confusing its power to revoke a U.S.
passport with the possibility of revoking one’s naturalization. Deprived
of their passport, these Yemeni Americans are not without identity documents,
as they are most often dual citizens and therefore also Yemeni; they are
instead illegally deprived—de facto—of their American citizenship.69

If a passport has been
delivered listing the same information contained in an individual’s
naturalization certificate, it is not attesting to a false identity—instead, it lists one’s identity
as a naturalized citizen. Therefore, the
passport is valid and remains so for as long as the individual remains an American
citizen. If the State Department has some doubt regarding the validity of the
naturalization, the case must be brought to court.70When the power to naturalize was transferred by the Immigration Act of
1990 from the courts to the Attorney General, another provision of the same Act
transferred to the Attorney General the power “to correct, reopen, alter,
modify, or vacate an order naturalizing the person.”71
But in 2000, in Gorbach v. Reno, the
Ninth Circuit affirmed the exclusive statutory competence of the courts to
revoke citizenship.72
Following this decision, the Department of Homeland Security has not attempted
to resume the use of administrative denaturalization.73
Since 2001, only several dozen naturalized Americans have lost their
citizenship, through judicial proceedings, largely because they committed
different kinds of fraud during the naturalization process.74
This small number is in part explained by Kungys
v. United States,75 in which the Court refused to uphold the denaturalization of
Juozas Kungys because the government had not shown that his misrepresentation
concerning the date and place of his birth were facts that, if
known, would have warranted denial of citizenship.76

This is not the first time in its history that the State
Department has exercised discretionary power over passports as a proxy for
nationality policy. The 1907 Expatriation and the Protection of Citizens Act
contained a provision stating that a residence of two years in the foreign
state of origin by a naturalized citizen, or of five years in any other foreign
state, would allow the government to assume that he or she “has ceased to
be an American citizen.”77
The provision transformed some instances of denaturalization from a judicial to
an administrative procedure. Furthermore, there was no longer a time limit
placed on penalizing the maintenance of a residence abroad.78
Soon thereafter, Attorney General George Wickersham held that the new law had
been enacted not to deprive naturalized Americans living abroad of their
citizenship; rather, it was meant only to relieve the State Department of the
burden of protecting them after an extended stay abroad.79 In the
years following the Wickersham opinion, under the Taft and Wilson Administrations,
this remained the Justice Department’s interpretation of the 1907
Expatriation Act.80

Starting in 1911, the State Department rebelled against the
Department of Justice’s interpretation, de facto denaturalizing
naturalized Americans residing abroad simply by refusing to deliver them a
passport.81
In the 1924 decision United States v. Gay,
the Supreme Court endorsed the Justice Department’s approach and
described the presumption of loss of citizenship based on foreign residence as
“easy to preclude, and easy to overcome.”82 In 1926,
the State Department subsequently reached a truce with the Justice Department.83
“The presumption that a naturalized American living abroad had ceased to
be an American citizen would no longer exist ‘upon his return to the
United States and his reestablishment here in good faith of a permanent
residence.’”84

The State
Department, waiting for an occasion to reestablish the scope of
denaturalization of foreign-born Americans residing abroad, found it in the
Nationality Act passed in October 1940, steeped in the climate of fear caused
by the outbreak of World War II in Europe. Sections 404-06 of the Act applied
an automatic loss of citizenship to naturalized citizens residing as few as two
years in their country of origin or five years in any other foreign countries
during any time after their naturalization.85Congress went far beyond foreign-born Americans by deciding to
denationalize different categories of native-born Americans perceived to be
un-American.86 During
the period from 1940 until Afroyim v.
Rusk in 1967, when the revocation of one’s passport followed as a
consequence of the loss of citizenship, the State Department did not stop using
its passport power as its citizenship policy. In 1959, the State Department
tried to challenge the validity of a certificate of citizenship of the son of a
naturalized American born in Germany. The Immigration and Naturalization
Service considered the certificate valid. The Attorney General issued an
opinion in which he stated that Congress, in providing for the issuance of the
certificate of citizenship to the former, meant “to deprive all other
administrative officers of the United States of the power to put in issue the
citizenship status recognized by a certificate regular on its face.”87
And he added, “[t]o rule that the Department of State may deny a passport
. . . on the ground of non-citizenship although he is in possession of a
certificate duly issued would mean that the same treatment might be accorded
the thousands of persons holding like certificates.”88

However, in the years following Afroyim, during which time U.S. citizenship has become more and
more protected and the incidence of denaturalization has declined, the State
Department might once again be tempted to use the revocation of a
citizen’s passport as a proxy for revoking naturalization. Such a claim
is reinforced by the argument that the same office charged with delivering
passports should have the power to revoke them. When asked in 2000 to determine
the constitutionality of the 1990 Immigration Act’s delegation of the
power to denaturalize to the Attorney General rather than the federal courts,
the Ninth Circuit, sitting en banc,
stated:

[T]here is no practical sense in supposing that,
because the Attorney General can
naturalize, she needs to have the power to denaturalize. The former power is
typically exercisedwholesale, the
latter retail. An administrative agency is usefulfor performing large numbers of repetitive,
routine tasks (from the agency’s viewpoint, not the new citizen’s),
such asnaturalization, that do
not take away important liberties fromindividuals. But administrative agencies, accustomed to treat a case as “one unit in a mass of related
cases,” are dubious
instruments for performing relatively rare acts catastrophic to the interests
of the individuals on whom they areperformed.89

The same reasoning
could apply to the State Department, which is in charge of delivering millions
of passports every year. The significance of this logic extends well
beyond the cases that have recently come to light. At least those Yemeni
Americans subject to State Department action had their cases taken up by some
lawyers and NGOs. Other Americans abroad do not have similar access to legal
counsel and may not know that they have grounds for legal appeal should they
feel that their status as American citizens is unfairly contested. This further
underscores the need for clarification by the courts.

Conclusion

The State Department seems to be abusing its power with
passport revocation—unknowingly in the case of Snowden, as the Department
could at first glance rely on a jurisprudence that seemed until recently to
favor executive power, and willfully in the case of the Yemeni Americans. It
therefore seems that it is time for courts confronted with passport revocations
to reexamine the constitutional function of the passport and its status in
relation to American citizens who, since Afroyim,
have gained more protection over their citizenship in relation to the
state—including in relation to the Secretary of State. Today it is
commonplace to say that new technologies infringe upon civil
liberties—they often do. However, in the case of passports and the
essential right of Americans to maintain a legal identity, new technologies
offer an avenue to protect that very right. By affirming both that a passport
belongs among the privileges and immunities of an American abroad and that the
Secretary of State cannot revoke a passport as a matter of administrative
routine, courts could make the passport an almost inalienable auxiliary of the
American citizen abroad: the symbol and substance of an irreducible citizenship
which the Supreme Court has already proclaimed.

Patrick Weil is a
Visiting Professor of Law at Yale Law School and a senior research fellow at
the French National Center for Scientific Research (C.N.R.S.) in the University
of Paris 1, Pantheon-Sorbonne. His most recent book is The Sovereign
Citizen: Denaturalization and the Origins of the American Republic (University of Pennsylvania Press, 2013).
Among his other recent publications are From Conditional to Secured and
Sovereign: The New Strategic Link Between the Citizen and the Nation-State in a
Globalized World, 9 Int’l J. Const. L.615 (2011)and
(with Son-Thierry Ly) The Anti-Racist Origins of the American Immigration
Quota System, 77 Soc. Res. 45 (2010).

I would like to thank
especially Daniel Hemel, Yaman Salahi, and Michael Wishnie, as well as Atossa
Araxia Abrahamian, Michel Dejaegher, Giorgios Dimitropoulos, Owen Fiss, Itamar
Mann, Gerald Neuman, Noah Rosenblum, and Eugene Rusyn for their numerous and
decisive contributions to this Essay. I am most grateful to Idriss Fofana and
Nicholas Handler, my research assistants at Yale Law School, for their
invaluable creativity and reactivity. At the Yale Law Journal, Benjamin Farkas has been a fantastic
editor and discussion partner, Benjamin Eidelson encouraged me to submit a
proposal and then, together with Ryan Thoreson, has worked behind the scenes.
Thanks to all.

.22 C.F.R. § 51.60(a) (2014) states that “[t]he Department may not issue a passport, except a passport for direct return to the United States,” before enumerating the cases in which the Department can act in such a way. It is this particular type of passport—available only for a short period, solely for the purpose of permitting direct return to the United States—that Attorney General Holder was referencing in his letter. See also infra note 69 (discussing the case of passports recently issued to Yemeni Americans following the revocation of their passports).

Id at 283-84. On December 23, 1979, the U.S. Consul General in Hamburg notified Agee that the State Department was revoking his U.S. passport. Its authority to act was based on 22 C.F.R. § 51.70(b)(4), which allowed the Secretary of State to refuse to issue (or deny) a passport if she “determines that the national’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States,” and on 22 C.F.R. § 51.71(a), which permits the Secretary to revoke a passport for any reason allowing him to deny it. Id. at 311 (Brennan, J., dissenting).

Agee was decided on June 29, 1981. At the end of May 1981, Chief Justice Burger circulated a draft opinion that did not address the constitutional claims that Agee was presenting. On May 29, Justice White informed the Chief Justice that “several of us, perhaps as many as five, indicated that both statutory and constitutional issues should be dealt with.” Letter of Justice Byron White to Chief Justice Warren Burger, May 29, 1981 (on file with the Library of Congress, Brennan Papers, I 543/1). On June 3, Chief Justice Burger circulated additional pages, which would become Part III of his opinion. Memorandum from Chief Justice Warren Burger to the Supreme Court (on file with Library of Congress, Brennan Papers, I 543/1).

22

See generally Agee,453 U.S. at 306-10 (containing no discussion of the recognition and identification function of passports).

Letter of Justice Potter Stewart to Chief Justice Warren Burger, June 23, 1981 (on file at Yale University Archives, Potter Stewart Papers, box 365, folder 1367). In this letter, Justice Stewart mentioned Califano v. Aznavorian, 439 U.S. 170, 176 (1978), where he delivered the majority opinion, and asked Burger to substitute the word “freedom” for the word “right” used in the first draft of his Part III of Haig v. Agee.

Id. at §§ 401-410, 54 Stat. at 1168-1171. Although denaturalization had similar consequences to denationalization for the individual, the two are distinct: denationalization denotes a loss of citizenship, whereas, in theory, a denaturalized person has never been a citizen.

Afroyim v. Rusk, 387 U.S. 253 (1967). The struggle that led Justice Black and Chief Justice Warren to find a way to declare citizenship an absolute right while in the minority of the Court in Peres v. Brownell, 356 U.S. 44 (1958), and to summon the majority in Afroyim nine years later, after many divisive cases had been decided—often in contradiction with each other—is described inWeil, supra note 33, at 145-75.

35

Afroyim, 387 U.S. at 268.

36

U.S. Const. amend. XIV, § 1.

37

Slaughter-House Cases, 83 U.S. 36 (1872).

38

SeeGerald Gunther, Constitutional Law 410 (12th ed. 1991) (arguing that the Slaughter-House Cases “implicitly rejected . . . the position that all the Bill of Rights guarantees were made applicable to the states by the post-Civil War constitutional changes”); L.H. LaRue, The Continuing Presence of Dred Scott, 42 Wash. & Lee L. Rev. 57, 61 (1985) (arguing that the Slaughter-House Cases “look like the deep mirror image of DredScott. . . . With the adoption of the Fourteenth Amendment, blacks became citizens, but Miller gutted the meaning of that by stripping citizenship of any important legal consequences”); Timothy Sandefur, Privileges, Immunities and Substantive Due Process, 5 N.Y.U. J. L. & Liberty 115, 115 (2010) (arguing that the Privileges or Immunities Clause was “famously mutilated by the . . . Slaughter-House Cases”); Kimberly C. Shankman & Robert Pilon, Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals and the Federal Government, 3 Tex. Rev. L. & Pol. 1, 20 (1998) (“Five years after the Fourteenth Amendment was ratified, the Supreme Court, in the infamous Slaughterhouse Cases, effectively eviscerated the Privileges or Immunities Clause, thereby fundamentally changing the course that Congress and the American people had meant the Court to follow.”).

Convention Relating to the Status of Refugees, supra note 44, at art. 28; see also Identity Documents for Refugees, U.N. High Comm’r for Refugees (July 20, 1984), http://www.unhcr.org/3ae68cce4.html.

46

Convention Relating to the Status of Refugees, supra note 44, at art. 28.

47

James C. Hathaway, The Rights of Refugees Under International Law 237 (2005).

48

The United States has not signed the 1951 Convention Relating to the Status of Refugees, the 1954 Convention Relating to the Status of Stateless Persons, or the 1961 Convention on the Reduction of Statelessness. See alsoU.N. High Comm’r for Refugees & Open Soc’y Justice Initiative, Citizens of Nowhere: Solutions for the Stateless in the U.S. 3 (Dec. 2012), http://www.opensocietyfoundations.org/sites/default/files/citizens-of-nowhere-solutions-for-the-stateless-in-the-us-20121213.pdf. The United States has, however, signed the Protocol Relating to the Status of Refugees; under Article 1 of the Protocol, signatories “undertake to apply articles 2 to 34 of inclusive of the Convention [Relating to the Status of Refugees] to refugees as hereinafter defined.” Protocol Relating to the Status of Refugees art. 1, Jan. 31, 1967, 606 U.N.T.S. 267.

49

Snowden remains a citizen of the United States, and only of the United States, which distinguishes his case from those of individuals with dual nationalities.

As Justice Stevens argued in his majority opinion in Saenzv. Roe, “the protection afforded to the citizen by the Citizenship Clause of that [Fourteenth] Amendment is a limitation on the powers of the National Government as well as the States.” 526 U.S. 489, 507-08 (1999).

56

See Urtetiqui v. D’Arcy,34 U.S. 692, 699 (1835).

57

Foreign Relations Authorization Act, Fiscal Year 1979, Pub. L. No. 95-426, sec. 707(b), §215(b), 92 Stat. 992 (codified at 8 U.S.C. § 1185(b)(2012)). See Joy Beane, Passport Revocation: A Critical Analysis of Haig v. Agee and the Policy Test, 5 Fordham Int’l L.J. 185 (1981) (noting as an exception that in 1978, citizens did not need a passport to travel between the United States and adjacent countries, with the exception of Cuba). Since 2004, as a result of the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7209, 118 Stat. 3638, 3823, U.S. citizens need a passport or a passport card to travel to neighboring countries.

On June 3, 1981, the day Chief Justice Burger circulated the first draft of Part III of his opinion, he also wrote to his five colleagues who were forming the majority: “I continue to have serious doubts about deciding the Constitutional issues when (a) there is a statutory basis for decision; and (b) the Court of Appeals did not decide the Constitutional issues. Is ‘saving of judicial time’ a sufficient basis for departing from long-standing practice?” Memorandum by Chief Justice Warren Burger to Justices Stewart, White, Blackmun, Powell, Rehnquist, and Stevens (Jun. 3, 1981) (on file with Library of Congress, Blackmun Papers, 332, folder 2). After receiving these additional pages, Justice Powell replied to the Chief Justice: “As to the constitutional issue, I agree with your Part III. I am in favor of brevity (especially at this season of the year), but the treatment of the issue is somewhat more summary than I would have expected.” Letter from Justice Lewis Powell to Chief Justice Warren Burger (June 5, 1981) (on file with Library of Congress, Brennan Papers, I 543/1).

63

In March 2011, the State Department sought to revoke the passport of radical Muslim cleric Anwar al Aulaqi for the reason that his activities abroad were “causing and/or likely to cause serious damage to the national security or the foreign policy of the United States.” Cable from U.S. Dep’t of State to U.S. Embassy in Sana’a, Yemen, Passport Revocation—Anwar Nasser Aulaqi (Mar. 24, 2011), http://www.scribd.com/doc/114624904/Anwar-al-Aulaqi-Docs-Combined#page=63. The State Department instructed the American embassy in Sana’a, Yemen to send a message to Mr. Aulaqi, who resided in the country, asking him to collect an important letter. Id. Embassy officials were to revoke Mr. Aulaqi’s U.S. passport upon his arrival at the embassy. Id. It remains unclear whether Mr. Aulaqi ever collected the letter. Catherine Herridge & Kristin Brown, Al-Awlaki Faced Loss of U.S. Passport Before Drone Strike Killed Him, Documents Show, Fox News (Nov. 27, 2012), http://www.foxnews.com/politics/2012/11/27/al-awlaki-faced-loss-passport-6-months-before-drone-strike-killed -him-documents. Mr. Aulaqi was killed in a drone strike in September 2011. Id.

In some cases, these people were children when they immigrated to the United States and naturalized as minors. Interview with Yaman Salahi, Staff Attorney, Nat’l Sec& Civil Rights Program at Advancing Justice-Asian Law Caucus in S.F., CA (Mar. 21, 2014).

Originally, the U.S. embassy in Yemen was confiscating passports and was not informing people that they continued to have the right to travel back to the United States. However, after the ACLU and other NGOs got involved, the State Department and the embassy created a process in February 2014 by which people whose U.S. passports had been confiscated could request a document called either a “direct return” or “limited validity” passport. It is good for thirty days and only for travel to the United States, and will be confiscated upon arrival at a U.S. port of entry. Interview with Yaman Salahi, supra note 65.

70

See, e.g., Magnuson v. Baker, 911 F.2d 330, 333 n.6 (9th Cir. 1990) (“A certificate of naturalization or of citizenship issued by a naturalization court is simply a record of the court's determination of the question of citizenship. As a record of a final court decision, a certificate is conclusive evidence of the court's determination of the litigated issue, i.e., citizenship. Because a certificate is conclusive evidence of citizenship, if a holder of a certificate from a naturalization court presented the certificate to the Secretary in order to obtain a passport, the Secretary could not relitigate the citizenship issue. The Secretary could question only the certificate's authenticity, i.e., whether the certificate is a forgery.”).

Since 2001, at least fifty-six denaturalization cases have been decided by courts. (The cases were found by searching on Westlaw for (denaturalization OR (revocation /3 citizenship)) as well as (cancel! certificate /3 citizenship) over a time period of January 2001 to March 2014. The results were then reviewed for denaturalization proceedings.)

75

485 U.S. 759 (1988).

76

Kungys is the Supreme Court’s most recent interpretation of what 8 U.S.C. § 1451(a) requires for judicial denaturalization. The petitioner immigrated in 1948 and was naturalized as a citizen in 1954. In 1982, the Justice Department commenced denaturalization proceedings on three grounds: (1) Kungys had participated in the slaughter of two thousand Jewish Lithuanian civilians in 1941 during World War II; (2) Kungys made false statements concerning his date and place of birth as well as his employment and residence during World War II (the “concealment and misrepresentation” claim); and (3) even if Kungys’s false statements were not in themselves material to his original naturalization proceeding, their falsity indicates that Kungys lacked the requisite “good moral character” for naturalization (the “illegal procurement” claim). 485 U.S. at 764-65. In response, the district court found that the evidence as to (1) was unreliable, that Kungys’s false statements were not material to his denaturalization, and that, because they were not material, they could not be used to show Kungys’s lack of good moral character. SeeUnited States v. Kungys, 571 F. Supp. 1104, 1104 (D.N.J. 1983). The Third Circuit upheld the district court regarding claim (3), but reversed its decision on claim (2) and declined to decide claim (1). SeeUnited States v. Kungys, 793 F.2d 516, 516-17 (3d Cir. 1986). The Supreme Court then agreed to consider the standards required for the “concealment and misrepresentation” claim (but only as to the date and place of Kungys’s birth) and the “illegal procurement” claim. 485 U.S. at 766. It did not reexamine the question of Kungys’s participation in World War II atrocities. Id. Writing for the majority, Justice Scalia ruled with respect to the “concealment and misrepresentation” claim that “the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the Immigration and Naturalization Service,” or if their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship. Id. at 772. On the separate question of whether the citizenship was “illegally procured” under 8 U.S.C. § 1101(f) because the petitioner lacked the good moral character required, the Court held that that section of the Act does not contain a materiality requirement because the primary purpose is to identify lack of good moral character, not to prevent false pertinent data from being introduced into the naturalization process. Yet it applies only to oral statements made under oath and to misrepresentations made with the subjective intention of obtaining immigration benefits, which was not the case for Kungys. Id. at 780.

77

Expatriation Act of 1907, ch. 2534, § 2, 34 Stat. 1228, 1228.

78

In the 1906 Naturalization Act, a provision permitted the initiation of denaturalization proceedings against a naturalized citizen who had returned to his country of origin within the five years following his naturalization. ch. 3592, §15, 34 Stat. 596, 601.

79

Naturalization—Citizenship—Residence in Native Country for Two Years—Status of Wife, 28 Op. Att’y Gen. 504, 507-08 (1910).

Id. at 460. This opinion concerned the case of Albert Flegenheimer, who was born in Germany on July 4, 1890 to a naturalized father. His citizenship was recognized by the Immigration and Naturalization Service in 1942; it was confirmed again in 1952. In 1959, the State Department contested his status after having earlier agreed to represent him as an American citizen in the Italian-American Commission against the Italian government while he sought to obtain the cancellation of a sale of property made in Italy in 1941 under duress. The commission concluded on September 20, 1958 that he was not an American citizen and rejected the U.S. claim. Flegenheimer Case, 14 R.I.A.A, 327, 389-90 (Ital.-U.S. Concil. Comm’n 1958).